Young v. Carran, Ky COA, Release Of Medical Records In Child Custody Litigation, HIPPA

info@stockbroker-fraud.com (Shepherd Smith & Edwards LLP) — Fri, 21 Nov 2008 17:36:42 GMT

YOUNG V. CARRAN 2008-CA-000082 PUBLISHED: AFFIRMING PANEL: LAMBERT PRESIDING; KELLER AND WINE CONCUR COUNTY: KENTON DATE RENDERED: 10/24/2008 Mom sought to maintain a private cause of action against Dad’s law firm for violation of HIPAA for the inadvertent disclosure of her medical and psychiatric records to Dad in child custody litigation. TC granted summary judgment. Mom appealed. Mom signed release as to her medical records, but expressly did not agree to release of records to Dad. After Dad’s firm received the records, Dad ultimately chose to seek other counsel and picked up his file from the firm. He left the...

YOUNG V. CARRAN
2008-CA-000082
PUBLISHED: AFFIRMING
PANEL: LAMBERT PRESIDING; KELLER AND WINE CONCUR
COUNTY: KENTON
DATE RENDERED: 10/24/2008

Mom sought to maintain a private cause of action against Dad’s law firm for violation of HIPAA for the inadvertent disclosure of her medical and psychiatric records to Dad in child custody litigation. TC granted summary judgment. Mom appealed.

Mom signed release as to her medical records, but expressly did not agree to release of records to Dad. After Dad’s firm received the records, Dad ultimately chose to seek other counsel and picked up his file from the firm. He left the package, containing the unreviewed medical records, in his vehicle. Mom removed the package before he reviewed them.
Mom subsequently filed suit against Dad’s former law firm, claiming violation of HIPAA amongst other claims. Dad’s former law firm moved for summary judgment. TC granted the motion, holding that HIPAA does not create a private cause of action for violations such as those alleged by Mom; and furthermore, that KRS 446.070 is limited in applicability to state statutes and does not apply to federal laws such as HIPAA or the laws of other states. Mom appealed.

CA held that HIPAA does not create a state-based private cause of action for violations of its provisions. KRS 446.070 provides an avenue by which a damaged party may sue for a violation of a statutory standard of care if the statute in question provides no inclusive civil remedy and if the party is within the class of persons the statute is intended to protect. However, Mom could not avail herself of this statute because it does not apply to any statutes but Kentucky state statutes. TC affirmed.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

A.P. v. Commonwealth, Ky COA, Termination Of Parental Rights, Due Process Right To Counsel

info@stockbroker-fraud.com (Shepherd Smith & Edwards LLP) — Fri, 21 Nov 2008 17:31:51 GMT

A.P. V. COMMONWEALTH OF KENTUCKY, CABINET OF HEALTH & FAMILY SERVICES, B.M.P. 2008 WL 4601312 2008-CA-000730, PUBLISHED: VACATING AND REMANDING PANEL: CLAYTON PRESIDING; ACREE AND KELLER CONCUR COUNTY: TRIMBLE DATE RENDERED: 10/24/2008 ISSUE: Mother appealed TC’s judgment involuntarily terminating her parental rights to Child, contending that her due process rights were violated, that her counsel’s assistance was ineffective, and that the findings of fact were not supported by clear and convincing evidence. CA agreed as to the due process issue, and therefore, vacated and remanded. FACTS: Cabinet filed DNA petition which alleged that Mother’s Stepfather had abused the child while...

A.P. V. COMMONWEALTH OF KENTUCKY, CABINET OF HEALTH & FAMILY SERVICES, B.M.P.
2008 WL 4601312
2008-CA-000730,
PUBLISHED: VACATING AND REMANDING
PANEL: CLAYTON PRESIDING; ACREE AND KELLER CONCUR
COUNTY: TRIMBLE
DATE RENDERED: 10/24/2008
ISSUE:
Mother appealed TC’s judgment involuntarily terminating her parental rights to Child, contending that her due process rights were violated, that her counsel’s assistance was ineffective, and that the findings of fact were not supported by clear and convincing evidence. CA agreed as to the due process issue, and therefore, vacated and remanded.

FACTS:
Cabinet filed DNA petition which alleged that Mother’s Stepfather had abused the child while Mother and Child were living with him and Maternal Grandmother. Mother subsequently permitted contact between Child and Mother’s Stepfather in violation of safety plan. After hearings, Child was placed with Father and then at the Home of the Innocents and Father’s parental rights were terminated. At a permanency hearing, TC ordered that the goal be changed to adoption. Cabinet filed an involuntary termination of parental rights against Mother and a GAL was appointed and Mother was appointed an attorney. A bench trial occurred over two days. On the first day, all the parties including Mother appeared, but her counsel was not present due to inclement weather in Northern Kentucky. TC tried unsuccessfully to reach him. TC then allowed clinical psychologist to testify, though Mother did not have attorney present, because the psychologist traveled from Frankfort to be there. TC provided that Mother’s attorney would not be limited in his cross-examination of the psychologist. Mother was never questioned about whether or not she wished to proceed with the hearing without her counsel present.
At the conclusion of psychologist’s testimony and cross-examination by GAL, TC again attempted to contact Mother’s attorney to ascertain whether the trial could be resumed later in the day. When TC could not reach Mother’s attorney, it allowed Child’s therapist to testify because she would not be able to testify at second trial date. During therapist’s testimony, Mother’s attorney called TC and advised that he would be unable to make the hearing that day due to the road conditions but that it was fine for the court to continue without him.
On the second day of trial, Mr. Adams had no questions for either psychologist or therapist both witnesses were released. CA record did not demonstrate whether or not Mother’s attorney had reviewed the tapes from first day of trial. The Cabinet called five more witnesses. The only witness called by Mother’s attorney was Mother. At the conclusion of the trial, TC called upon CASA volunteer. Although she was not sworn in, she was asked by TC to give a 90-second synopsis of her involvement and recommendation for the child to the court. In fact, CASA volunteer was present during the entire trial, having not been asked to leave during the testimony of the other witnesses.

ANALYSIS:
On appeal, Mother contended that as her counsel was not present during the first day of the termination hearing, her due process right to a fair hearing was violated. CA agreed.
Kentucky’s statutory scheme to protect children and to adjudicate parental rights provides for the appointment of counsel throughout all the proceedings. CA found that the failure of Mother’s counsel to be present on the scheduled day of the trial during the testimony of the first two witnesses could have made a difference in the family court termination proceeding. CA found that the judge, the Cabinet’s counsel, and GAL all indicated uneasiness with the proceeding since Mother’s counsel was not present. Unfortunately, the focus seemed to be on the witnesses’ convenience rather than the mother’s fundamental right to be properly represented during the trial.
Upon remand, TC was to conduct another termination hearing under KRS 625.080, and Mother shall be represented by counsel during the entire proceeding. CA held that such a serious matter, possible loss of this elemental societal relationship between parent and child, requires complete deference to providing for all the parent’s due process rights.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

loo

Fri, 21 Nov 2008 13:54:35 GMT

It is really quite striking how much of a frenzy there is surrounding the tragic case of Baby P. I have made no effort in this blog to keep up with the astonishing amount of news coverage of the case and of the question of child protection generally - I have a full time job after all. But what I can tell you is that by virtue of posting something about Baby P last week combined with the magic of google this blog has had one of the busiest weeks ever. My stats page tells me that ‘Baby P’ is pretty much all anyone is googling at the moment.

As yesterday’s OFSTED report apparently tells us (I say apparently because I haven’t had time to read it, and because frankly it’s not news to me) this kind of tragedy is going on all over the country. Sadly many kids are killed by their carers, and no doubt sometimes this could have been prevented. But as the slathering media machine churns on and on I am beginning to feel a little bit like the gawping at the spectacle of Baby P is not only unhealthy in itself but a little bit disrespectful to all those other forgotten babies and children. I’m afraid what is being reported as ’shocking’ to many of us is probably ‘normal’ for many many unhappy children.

Posted in stuff

Stark & Stark Attorney Featured on Legally Speaking

rdeluca@stark-stark.com (Stark & Stark) — Fri, 21 Nov 2008 13:34:00 GMT

Michael J. Fekete, member of Stark & Stark's Business & Corporate group, was a featured guest on the Camden County Bar Foundation's weekly television talk show Legally Speaking on Sunday November 9, 2009. Mr. Fekete discussed the New Jersey Home Improvement Law, the Consumer Fraud Act and the Contractor's Registration Act. You can watch the full episode online here.

Fri, 21 Nov 2008 09:23:55 GMT

You've got to see it to believe it.

Here's Palin apparently hoping to look Presidential, slathering for more media, yet with absolutely nothing to say.

Palin blathers on and on glancing back every once in a while to smile as the turkeys get beheaded and drained, saying..."at least this was FUN!!!"

Since the election, Palin has done nothing for the state of Alaska, continuing to attempt to advance herself on the state dime. After losing on November 4th, she immediately began conducting self-serving fluffy interviews in the "mainstream media" she loves to put down, attempting to look homey and maternal, yet re-heating the moose chili her dad admitted in an earlier interview he made and brought to her house, which she pretends to cook it in her designer duds. Her grade school daughter admits on camera she missed a lot of school, would have a hard time catching up, didn't like the rallies and missed her friends.

Well I'm not so sure that education and family are really things Sarah bothers with much except when the cameras are on. This same "family values" governor failed to attend or address the Alaska Dropout Prevention Summit convened by the Department of Education & Early Development. Yet Alaska's drop-out rate idouble that of the US average. And Palin seems to place little priority on her own children's education. She now has 2 high school drop outs in the family, all of her school age children's education seems to have taken a back seat to either mom's ambition or religious views, and she'll soon be the mother-in-law to another high school drop out.

But wait, there's more! Veteran's Day came and went without a peep of acknowledgement or thanks from our dear governor, who also has a son serving in Iraq. But boy, she trots out that fact every opportunity she gets when she thinks it plays well for the crowds or the media.

My congratulations and sincerest thanks to Mark Begich for delaying her attempt to weasel her way into the Senate. Hopefully now, this will give more of our responsible and educated citizens time to continue to demand accountability for her actions, for the media to start actually asking follow-up questions when she lies or avoids answers, and for the Alaska legislature to locate their responsibility to the citizens of Alaska to act upon her numerous ethical lapses and misuse of state funds and resources.

What the Court Staff Can and Cannot Do For You

stevens@stevensfirm.com (J. Benjamin Stevens) — Fri, 21 Nov 2008 05:01:49 GMT

People attempting to represent themselves in Family Court cases will sometimes ask the Court staff for help with various issues. Over the years, I have overheard these pro se litigants ask virtually every question imaginable of the Clerk of Court's staff. Many times, these people are attempting to obtain legal advice from the Court staff, which of course they cannot provide since they are not attorneys.

In order to help the public and the Court employees know what is (and more importantly isn't) permissible, our state Supreme Court has published a document which clearly explains what the Court employees can and cannot do. This document was the result of work done by the South Carolina Access to Justice Commission, and you can access a copy of it by clicking HERE.

Source: "Did Ya Know? What Your Clerk of Court Can and Cannot Do!" published at the SC Access to Justice Weblog.

julieshapiro

shapiro@seattleu.edu (Julie Shapiro) — Fri, 21 Nov 2008 00:32:43 GMT

On one level I cannot believe that I am going to start yet again with something about Nebraska. But this is to raise a much broader point. There’s been a bit of coverage of the hearings to change Nebraska’s safe haven law. What struck me about the story I linked to is the discussion of the [...]

On one level I cannot believe that I am going to start yet again with something about Nebraska. But this is to raise a much broader point.

There’s been a bit of coverage of the hearings to change Nebraska’s safe haven law. What struck me about the story I linked to is the discussion of the harm done to children who are abandoned by their parents. It seems to me there are two parts to this harm. One is the knowledge that the parent has abandoned the child–has chosen to separate from the child. The other is the actual disruption of the parent/child relationship. As the article notes, many of the parents are not acting lightly. They are not acting because they do not love their children. To the contrary, they are leaving the children because they do love them and cannot think what else to do.

It’s not hard for me to see that the disruption/destruction of the parent/child relationship is a terrible thing for the child (and the parent, but let’s focus here on the child.) Sometimes–as when a parent dies–it is simply unpreventable. Though even then there can be a sense of abandonment. But it seems especially tragic (and perhaps especially consequential) when it doesn’t have to be that way.

Now I think the harm occurs because of the nature and depth of the relationship disrupted. That’s why it is different to abandon a 30-day-old and a ten-year old. If we were to discover that one of the parents in the article wasn’t actually genetically related to the child in question, I don’t think we’d therefore say that there really wasn’t any harm done. Indeed, I don’t think we know anything at all about the genetic relationship between the parents who testified in Nebraska and the children they left. We know their social relationships. In their eyes and in the eyes of the children, these people were parents. And therein lies the pain and the tragedy.

Now you can probably see where I want to go with this. Genetics is not what makes a person a real parent. Being a parent is what makes you a real parent. If the point of legal rules is to protect children (and perhaps adults, too) from suffering unnecessary harm through deprivation of these critical relationships, then the law should comport with reality. It should recognize the de facto parent and the functional parent.

I’ve written quite a bit about this on the blog–if you look under the tags “de facto parent” or “functional parent” you’ll see for yourself. In far too many instances, courts miss this point. Children and their parents live in the real world, and they have real relationships. The goal of law should be to recognize and protect these relationships–the real relationships that exist out there. You can see that reflected in the story about Nebraska. It’s the real pain that is caused, the real scars inflicted, that cry for our attention. Formalistic rules of parentage–rules based on DNA or legal relationship to another adult–will all too foten fail to reach these cases.

Record settlement in nursing home case

rmullman@gpoliakoff.com (Ray Mullman) — Thu, 20 Nov 2008 20:45:54 GMT

Chicago's Daily Herald had an article about a million dollar settlement between a nursing home and the family of a resident who died after repeatedly falling at the nursing home in Libertyville. The case, prompted by the 2005 death of 83-year-old Helen Menneke at Winchester House, was settled out of court after mediation. Attorney Susan Novosad called the figure the largest nursing home negligence settlement in county history.

Menneke, formerly of Mundelein, was admitted to Winchester House in January 2004, suffering from dementia, Novosad said. She fell several times over the course of the year, suffering a brain injury and broken bones, Novosad said. Injuries from a final fall in December 2004 required surgery, and Menneke died in January 2005.

After Menneke's death, Winchester House instituted new policies requiring staff to more frequently check patients' wheelchair and bed alarms to ensure they're working properly, Novosad said.

"The family was outraged that this happened to their relative," Novosad said. "(They) didn't want this to happen to anybody else."

Madonna and Guy Ritchie Celebrity Divorce

jameschau@jameschaulaw.com (James Chau) — Thu, 20 Nov 2008 19:10:41 GMT

An online source, is reporting that pop star Madonna and Guy Ritchie have reached a quick settlement in their divorce. Most in the media were speculating that the proceedings would get ugly and Mr. Ritchie would walk away with half of Madonna's fortune.

Fortunately in this situation the parties have reached an amicable split. They appear to have divided the time with the children between New York and London. This appears to be a couple who value the mental health of themselves and their children by reaching a settlement. I always tell my clients that the divorce proceeds as smoothly and quickly as you are willing to work together.

Not every couple can reach a divorce settlement like Madonna and Guy Ritchie can. I often suggest to my clients that they attempt at an uncontested divorce action for the sake of the children and the family.

If you have a santa clara county family law question, please contact my san jose divorce lawyer office.

Online parenting tools and software to assist families with schedules, communicaton and other issues

kysa@cruscolaw.com (Kysa Crusco) — Thu, 20 Nov 2008 19:06:16 GMT

Managing a family schedule from two households can be quite a chore. Online parenting software may be the answer for some separated or divorced parents to communicate and co-manage their children’s schedules. The services, which are either internet based or downloadable, offer a wide range of options for parents to choose from. The most complex have photo sharing, family journals, time-tracking, expense logs and more. These are generally fee based services. Others are simply online calendars geared towards family planning and scheduling but may not meet the needs of parents who have a difficult time communicating with each other.

OurFamilyWizard.com This particular service is geared towards separated, divorced and living apart parents. All information saved to the site is backed-up and secure. This is a service that would be useful to parents who find that their challenge is communicating with one another.

o Features:

The parent account allows access to:

Private and Shared Family Calendar

Message Board

Notifications and Reminder

Journal

Information Bank

Important Documents

Expense Log

Family Resource Section

E-Coupons

The child account allows each child their own account with access to:

Shared Family Calendar

Message Board

Create and View Journal Entries

Receive Notifications and Reminders

o Price:

$55.00 for six months (approx. $9.17/month)

$99.00 for one year (approx. $8.25/month)

$179.00 for two years (approx $7.46/month)

ParentingTime.Net This is the home of OPTIMAL which is the Online Parenting Time Information Manager and Access Log. OPTIMAL is a one year subscription based service which is geared for custody arrangements. Its central focus is on the “Tracker” module which records and tracks parenting.

o Features:

Custody calendar

Child Support Tracker

Private Message Center

Graphs & Statistics

Print & Export

Tasks & Notes

Time Tracker

Private Journal

‘At a Glance’ Homepage

Contacts & Address Book

Personal Preferences

Guest User Features

o Price:

$149.95 for a 1-year unlimited access subscription billed yearly

JointParents.com This service is marketed as having been developed by co-parents and is said to be easy to use and readily accessible. There is a Free 30 day Trial Period for interested users.

o Features:

Custody Calendar (Reminders, recurring events, email approvals for custody changes; color coded parenting days)

Daily Routine (Household rules and routines)

Contact Manager (Allow others to access)

Diary (History of occurrences between co-parents and children)

Message Board

Medical Manager

Multiple Families (Manage children with one or multiple families)

Overnight Reporting (Displays # of overnights with child)

Photos

Expense Tracking (Enter and track expenses, view total owed, show paid/not paid, email notification)

o Price:

30 day free trial available

$9.95/monthly payments

$99.50/annually (2 months free)

FamilyCrossings.com This online service is not solely directed towards separated, divorced and living apart parents, but rather a service that provides each family with its own website. You can visualize family data with maps, time lines and tag clouds. Family Crossings offers both a free and subscription service.

o Features:

Free: This version offers less storage space and has sponsor advertisements visible. Families can access a number of features that could be helpful in family organizing and information sharing.

News

Photos

Calendar

Address Book

Live IM style chat

Gift Center

Storage – 150MB

Premium: Families have more storage space and no advertisements. There are also six more features than the free version. You can also add storage space if need be.

News

Photos

Calendar

Address Book

Live IM style chat

Gift Center

Family history

Family Database

Wish List

Family Polls

Special Offers

Games

Storage – 250MB

o Prices:

The premium version is $9.95/month

CustodyToolbox.com This is a downloadable Windows program that is designed for custody situations.

o Features:

Calendar

Child Information

Journal

Parenting-time Report

To-Do List

Address Book

o Price:

15 day free trial available

$49.95 to purchase the software

Cozi.com This is a free online service that helps manage a family’s schedule. This is not geared specifically towards divorced, separated or living apart parents.

o Features:

§ Family Calendar

§ Customizable Lists

§ Reminders & Messages

§ Mobile access

§ Journal

§ Photo collage

§ Outlook sync

o Price:

§ Free

Crusco Law Office Law Clerk Marisa L. Ulloa contributed to this post.

APPELLATE DIVISION EQUALIZES SOCIAL SECURITY AS ALIMONY

esolotoff@foxrothschild.com (Eric S. Solotoff) — Thu, 20 Nov 2008 16:16:11 GMT

The Appellate Division issued an interesting unreported (non-precedential) opinion on November 20, 2008 in the case of Freda v. Freda wherein the Court found that it was error for the trial court to not equalize the parties' Social Security benefits.

In this case, both parties were in their 70s and had been married for more than 50 years. Their means were limited and this was not an alimony case, as they are typically before the Courts. The wife, however, requested that their Social Security benefits be equalized so that post divorce they both had the same amount of money (the wife's Social Security benefit was $797 and the husband's was $1,400).

Typically, after 10 years of marriage, at a legally appropriate age to collect, a spouse is able to collect based upon their earning record or their spouse's, whichever is higher. It is my understanding generally that when you collect on a spouse's record, a recipient gets half of what the spouse's entitled would be (this does not reduce the spouse's entitled, however.)

The Appellate Division stated "We find the trial court's decision unreasonable under the
circumstances of this case where, after fifty years of marriage, the parties should share equally in their joint income as well as their assets." As a result, the husband was ordered to pay the wife $300 per month as alimony

To view the full case, click here.

The wife's request in this case was one that is seldom seen in these cases and I have heard arguments that such a claim could be preempted by Federal law. That said, if the amount of/right to receive Social Security is based upon earnings during a marriage, then like a pension, or for that matter any other asset acquired during the marriage, why should it not be divided too? Perhaps that the answer is that this is not an asset, but rather a right, but that said, the arguments are analogous. This is definitely food for thought in cases involving long term marriages.

Nine Questions to be Asked in Choosing your Illinois Divorce Lawyer

Thu, 20 Nov 2008 14:38:58 GMT

Selecting the lawyer that will represent you is one of the most important decisions that you will make in your divorce case. You should try to find a lawyer who is skilled, competent, and who only handles family law and divorce cases. Seek someone who is responsive and willing to communicate with you throughout the divorce process. Ask for recommendations from your friends and family members, but in the end, trust your own judgment.

Schedule a consultation appointment with the lawyer. This will give you an opportunity to evaluate how you are treated by the staff and will give you some time to interact with and interview the lawyer. After spending thirty minutes to one hour with the lawyer, you should have a good feel for whether he or she is the right lawyer for you. One factor that is often overlooked is whether a lawyer’s personality compliments yours. You divorce lawyer is someone with whom you will be sharing many intimate details of your life as well confidential financial information. He or she must be someone with whom you are comfortable and whom you trust.

During the initial consultation with the potential lawyer, you may consider asking him the following 9 questions:

1. Do you specialize in family law? If you needed back surgery, would you go to a general practitioner? Of course not. Likewise, there are many lawyers who are general practitioners that will handle a divorce case. In addition, they take business matters, bankruptcies, criminal cases, etc. That is not the type of lawyer you want handling your divorce case. Ask them what percentage of their practice is divorce and family law matters. If it is not at least 90-100% of their practice, go elsewhere. Determine the lawyer's involvement as committee member or chair of a Family Law Committee or ADR Committee.

2. What would be the fee arrangement for you to handle my divorce case? Divorce lawyers normally set fees in one of two ways: they either charge a fixed fee for the entire case, or they charge a retainer against which they bill an hourly fee. Make sure you completely understand how you will be billed. A good lawyer will want to make sure that you completely understand and are comfortable with the fee arrangement. If you have any questions, ask.

3. What other costs can I expect? In addition to lawyer’s fees, there are other costs that are typically associated with your divorce case such as court costs, subpoenas, and sometimes such things as private investigator fees, depositions, etc. Ask the lawyer what types of costs are likely to be involved in your case and how much you can expect to pay for them.

4. Will you send me periodic itemized bills showing the time that you spent on my case and the expenses incurred? If you are being charged by the hour, the lawyer should systematically keep you updated with regard to your account. If you ever have a question about a charge on your bill, talk to the lawyer about it. Address it sooner rather than later. The only statements you should expect to receive is for costs that have incurred on your case (such as for subpoena fees, filing fees, etc.)

5. Do you have any resources that you can make available to me to help me reduce the pain and expense of divorce? Obviously, going through a divorce can be a very traumatic experience. A lawyer that is willing to educate you about the process and the law affecting your case will help remove some of the concerns that you may have.

6. Who else will be working on my case? Other paralegals, and/or staff members will sometimes perform work on your case. You want to be sure that the others work on your case are also competent and experienced. Also, find out at what hourly rate you will be charged for their working on your case, if at all. The hourly rate for paralegals should be much lower than that of the primary attorney on the case.

7. What efforts will you make to try to settle my case? The majority of divorce cases settle. A few are settled before they ever get to the lawyer (that is to say that the parties have already reached an agreement and the divorce lawyer is only needed to draft the paperwork). Many settle on the day of the trial, in a room outside the courtroom, and still others settle at any stage in between. You want a lawyer who is willing to communicate with your spouse and/or your spouse’s lawyer to try to settle the case. Many lawyers will not make a deliberate effort to settle your case, but rather will prepare the matter for trial and only settle it if the other side takes the initiative or if it happens to settle on the day of court. This type of lawyer can cost you thousands of dollars in unnecessary legal fees. Additionally, you should ask what the lawyer thinks about collaborative divorce and mediation. Collaborative and Cooperative Divorce are becoming more prevalent in divorce cases. These cutting edge approaches save time, stress, and money.

8. What I can do to keep my costs down? By taking an active roll in your case, there are certain fact gathering steps that will reduce your legal fees. If a lawyer is charging you by the hour, you may be better off gathering many of the financial documents and other information rather than relying on the lawyer’s office to do it.

9. Do you communicate personally with your clients to assess their needs and measure their satisfaction? All other factors being equal, a lawyer that surveys his clients to determine their needs and satisfaction is likely to render better service to his clients as he is more attuned to their feedback.

As you ask the above questions and make a decision about hiring a lawyer, keep in mind that you have a right to expect your lawyer to do the following:

Once you have found a good lawyer, remember that he or she works for you. Do not hand over control of your case without question. The lawyer should be willing to explain the decisions that need to be made during the process of your divorce as well as the recommendations. However, in the end, you are the one who makes the decisions. Your case is unique to your family. Hire a lawyer that will "partner" with you in achieving the best possible result.

RIDGEWOOD BERGEN COUNTY NEW JERSEY DIVORCE ALIMONY MEDIATION

ccaesq@att.net (Charles C. Abut) — Thu, 20 Nov 2008 14:28:28 GMT

It was error for the New Jersey divorce judge not to disqualify himself. Disqualification was warranted due to the judge's past employment of and past attorney/client relationship with the husband's second wife. Accordingly, denial of the 73 year old husband's motion to terminate his alimony obligation to defendant, his first wife, is reversed and remanded for new proceedings before a different judge. Thelmo v. Thelmo, New Jersey App. Div. November 11, 2008

Collaborative Divorce: It Works for the Material Girl

Thu, 20 Nov 2008 14:26:58 GMT

Madonna and Guy Ritchie could be the first high-profile couple to divorce collaborative-style. The new, fast-track and non-confrontational way of reaching arrangements over money and children on divorce has just won senior judicial backing - in the week that...

Madonna and Guy Ritchie could be the first high-profile couple to divorce collaborative-style.

The new, fast-track and non-confrontational way of reaching arrangements over money and children on divorce has just won senior judicial backing - in the week that the couple’s split became public knowledge.

Collaborative law does not sound buzzy. But it is the in-method of reaching divorce agreements, with the benefits of speed, huge cost savings and, above all, minimum acrimony.

Last week a couple of hundred lawyers gathered to celebrate the fifth year since American-style collaborative law was introduced in the UK. In 2003, four London lawyers were among a handful who had qualified in the new method; now there are more than 1,250 and more than 300 in London. This year has also seen the appointment of London’s first “collaborative” silk: Tim Amos, QC.

What is it? It aims to help couples reach agreement out of court, avoiding the risk of the public mud-slinging and battles epitomised in the split between Sir Paul McCartney and Heather Mills.

Settlements are reached in four-way, face-to-face talks between the parties and their lawyers. There is an incentive to agree: if the talks fail, then new lawyers have to be instructed for court proceedings - at extra cost.

The couple draws up a consent order which is then agreed by the court. This process used to take three to four months. But last week , Mr Justice Coleridge, a senior family judge, announced a fast-track procedure whereby such orders could now be approved within a couple of days.

He said that If every aspect of the case had been agreed, and the hearing before a judge for approving the order would not take longer than ten minutes, all that was needed was a day’s notice to the court and a chance for the judge to read the papers overnight.

The fast-track initiative, which has the backing of Sir Mark Potter, president of the Family Division, comes about after an un-named couple had asked for urgent approval of their settlement because one was about to move to the United States with the children.

At first, Mr Justice Coleridge said that he thought the application rather cheeky. But he added: “However, I am, as is well-known, a pussycat, and agreed to hear the application for approval as the first in the list on the following day.”

The key benefits of the new “good divorce” method are that it is non-adversarial; solutions can be tailormade and flexible; clients have control of the pace; experts (accountants, financial advisers, therapists or counsellors) can be brought in and work with the couples; and privacy is preserved.

He did sound one note of caution, however. Lawyers needed to be “acutely sensitive” to the process failing so that “costs are not run up first by one process and then, after the trial has hit the buffers, by the old-fashioned scheme”.

Isobel Robson, partner and head of family at Andrew Jackson, the Yorkshire law firm, said there was a big take-up in the new method.

“I believe that collaborative law is the most exciting development in family law in my 24 years of practice. Clients love it; they regard the process as direct, clear and amicable whilst avoiding the expenses and latent aggression of the court process.”

Cost savings were considerable too, she said. “I have dealt with collaborative cases with assets in the millions and costs of under £10,000 - perhaps only 10 per cent or less of the costs for contest cases with the same assets.”

The take-up among lawyers is still patchy, however, with some hugely successful pockets in the regions where lawyers have embraced the new method, but a slower take-up in other areas, including London.

“The clients embrace the concept that the whole focus of their case is on settling - rather than fighting,” she said.

Suzanne Kingston, head of family at Dawsons LLP, said that for Madonna and Guy Ritchie, the privacy would be a big incentive. The settlement could be reached “in one of the offices of the solicitors rather than in court”.

So it’s down to Fiona Shackleton (for Madonna) and (Lady) Helen Ward, for Ritchie. The couple are said to want a deal by Christmas. Using this route, they could well do it.

Source: London Times

Almighty Tax Lien Loses Battle to Environmental Escrow in Condemnation Action

tduggan@stark-stark.com (Timothy P. Duggan) — Thu, 20 Nov 2008 13:05:42 GMT

Recently, the Appellate Division of the Superior Court of New Jersey was required to determine whether the holders of tax sale certificates for unpaid real estate taxes were entitled to be paid from the proceeds of a condemnation award when the estimated environmental clean-up costs exceed the fair market value of the property. After a thorough review of the law, the court held that the tax liens could not be paid until the amount of the environmental liability was determined, even if it meant that the tax liens may never get paid.

In Township of Haddon v. Morgan Brothers, et al., Haddon Township sought to acquire a parcel of real estate by the exercise of its power of eminent domain. After the complaint was filed, Haddon Township deposited $280,000 with the court which was the Township’s estimate of the fair market value of the property “as if remediated”. The Township also admitted into evidence an expert report alleging that the amount necessary to remediate the environmental contamination was estimated to exceed $1.3 million.

The holder of several tax sale certificates sought to withdraw $125,000 from the $280,000 deposit which was the amount due on the tax sale certificates. The tax certificate holders argued that as first priority liens under New Jersey law, they were entitled to be paid before any other party in the case. However, the estimated clean-up costs were approximately $1.3 million and greatly exceeded the value of the property. The court was asked to determine whether the tax certificate holders were allowed to be paid from the $280,000 being held in escrow, or whether the certificate holders were required to wait to see if there was any money available after the clean-up was completed.

Under New Jersey law, when a condemning authority deposits the estimated value of the property into court and files a declaration of taking, title to the property transfers to the condemning authority. Liens against the property attach to the deposit in priority order. Parties with an interest in the funds are entitled to file a motion with the court to withdraw funds in the order of their priority. For example, a mortgage holder is entitled to withdraw the balance due on its mortgage before the property owner receives any funds. The same holds true for a tax certificate holder who is entitled to be paid before all mortgages, judgments liens and the owner. This is the case when there are no environmental problems.

When there are environmental problems, the process for withdrawing funds is changed. The condemning authority is entitled to introduce into evidence an environmental report disclosing the estimated clean-up cost for the property and request that the estimated clean-up costs be withheld from the amount on deposit until the clean-up is completed. For example, if the “as remediated” value of the property is $300,000 and the estimated clean-up costs are $100,000, the property owner and lienholders are only entitled to withdraw $200,000 from the $300,000 on deposit, with the balance of $100,000 to remain in escrow pending the completion of the environmental clean-up. The term “as remediated” means the value of the property assuming all environmental remediation has been completed.

The Appellate Division ultimately held that the tax liens may only be paid from funds remaining after Haddon Township is reimbursed for the remediation costs. Under the facts in the case, it was unlikely there will be any remaining funds remaining due to the high cost of remediation.

The case is based upon sound reasoning. Looking at the Haddon Township case, if a property is worth $280,000 “as remediated”, but it costs $1.3 million to remediate it, it has negative value. After the remediation is completed, the property is only worth $280,000. It would be unfair to allow the property owner (or lienholders) to keep the $280,000 which is a direct result of the $1.3 million spent to clean up the property.

Mediation v. Collaborative Divorce in Illinois

Thu, 20 Nov 2008 06:10:10 GMT

In mediation, there is one trained 'neutral' who helps the disputing parties try to settle their case. The mediator cannot give either party legal advice, and cannot help either side advocate its position. Mediation is a facilitative process, and it works best when the parties have a strong desire to find middle ground solutions, and do not have strong disputed issues.

Collaborative Law was designed to deal more effectively with conflicts in divorce, while maintaining the same absolute commitment to settlement as the sole agenda. Each side has quality legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is leveled by the presence of the parties' own attorneys dedicated to the collaborative process. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to make sure that the process stays positive and productive, and on course to settlement.

Missouri Child Support Guidelines and Case Law - Part 2 - Imputed Income

Mark@mwortmanlaw.com (Mark Wortman) — Thu, 20 Nov 2008 02:55:15 GMT

What happens when a parent tries to avoid a child support obligation because they are not working or only have a small amount of income? Well, in the eyes of the Court, that parent will be treated as if they did have income sufficient to pay the child support. The most common situation is when it is apparent that a parent is not working specifically to avoid child support, but there are many factors that the Court can consider when making this decision. This can happen in a divorce, paternity, or child support case, and it is called “imputed” income. The court can consider any relevant factor, and recent cases say the following:

For the non-custodial parent

Any imputed income must be within a parent’s capacity to earn, and if a parent earned a different income prior to trial the court should consider that income in calculating retroactive child support.
Even if a parent did not try to evade child support, the court can impute higher income than earned if the parent has the earning capacity.
Imputed income must be supported by evidence, not speculation, and the court record must reflect how the income was figured.
The income imputed to an underemployed or unemployed parent must be according to what they could earn if using their best efforts to find employment
The court can impute income if a parent has voluntarily and deliberately become unemployed, and a court should not do so if there is no showing of an attempt to evade responsibility
If a parent is terminated and does not use best efforts to find new employment, refuses offers, or fails to show unemployment is only temporary, income may be imputed

For the custodial parent

Factors include age, maturity of the child, availability of child care givers, relationship between the expense of child care and the net income the parent would receive, the reasons the parent stays home with the child.
A court may not treat imputation of income on the Form 14 different than its maintenance calculation

Next installment: Adjustments to income for child support, maintenance, health insurance, and medical costs

Swedish Mother Allegedly Abducts Her Sons During Her Court-Ordered Visitation under Hague Convention

info@fladivorcelawblog.com (Janet Langjahr) — Thu, 20 Nov 2008 01:40:58 GMT

Sons live primarily with Australian Father. Swedish Mother has two court-ordered visits with Sons per year in accordance with the Hague Convention on the Civil Aspects of International Child Abduction. Sons advise Father that Mother does not intend to return Sons to Father in Australia. Sons go to Sweden for their most recent visitation. Sons do [...]

Sons live primarily with Australian Father.

Swedish Mother has two court-ordered visits with Sons per year in accordance with the Hague Convention on the Civil Aspects of International Child Abduction.

Sons advise Father that Mother does not intend to return Sons to Father in Australia.

Sons go to Sweden for their most recent visitation.

Sons do not return on schedule.

Now the Australian Family Court has prohibited any further contact between Sons and Mother.

Unfortunately, that is not very helpful at this point.

Australia issues an arrest warrant for Mother and alerts Interpol of the incident.

From January to October, 121 Australian children were abducted from Australia.

Parental Alienation Syndrome in Minnesota Divorce and Custody Disputes

jcbrown@brownlawoffices.com (Jason C. Brown) — Thu, 20 Nov 2008 01:38:58 GMT

The Ohio Divorce Attorneys with Holzfaster, Cecil, McKnight & Mues author the popular Ohio Divorce & Family Law Blog. They recently posted a useful article entitled "What is Parental Alienation and Parental Alienation Syndrome?"

Attorney Robert Mues notes that there are a number of different factors and circumstances that have an effect on the determination of custody. As in Ohio, Minnesota judges must consider a number of relevant factors when determining the best interest of a child. One of those factors includes whether either parent has continuously and willfully denied the other parent’s right to parenting time or visitation as ordered by a court.

While visitation denials may be relatively easy to prove in court, that alone doesn’t amount to parental alienation. It is not uncommon for some amount of alienation to occur when parents first separate. Usually, the alienation subsides after the parents’ transition through the separation and move on with their lives. In some cases it doesn’t, and instead it continues and escalates to what has become referred to as “Parental Alienation Syndrome.”

This disorder was first identified by Richard A. Gardner, a forensic psychiatrist in the mid-1980s, who defines it as:

A disorder that arises primarily in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming or brainwashing of a child by one parent to denigrate the other parent and the child’s own contributions to the vilification of the target parent.

Mues accurately points out that there are three stages of parental alienation syndrome. These stages include mild, moderate and severe. In a mild case there are naive alienators and the perpetrator can be educated and changed. However, in a severe case the perpetrator is often delusional and their entire being is focused on destroying the other parent’s relationship with the child. Experts must be brought in to prove the alienation and, more importantly, to assist the child in gaining an accurate perspective on things.

Having handled many custody disputes involving parental alienation syndrome, I can honestly say that they are, by far, the most difficult and raw of all family cases. At the end of the day, the parent who engages in parental alienation behaviors is committing an act of abuse upon a child. The caselaw in Minnesota on this issue is rather undeveloped. But, like so many psychological theories and concepts, the public, and the courts, are becoming much more familiar with the syndrome and consequence of parental alienation.

There are some experts and jurists who have criticized the concept of parental alienation syndrome, calling it "inadmissible junk science." This author, however, questions how many times they've actually experienced and dealt with the conduct described by Gardner. Parental alienation syndrome is very real (no matter what you call it) and is an example of a parenting at its lowest and most neglectful level.

New Options for Child Support Payments

info-blog@georgiafamilylaw.com (Stephen M. Worrall) — Thu, 20 Nov 2008 00:24:40 GMT

By Sue Varon, Esq. and Jennifer Varon Non-custodial parents pay child support in a variety of ways. Divorced parents should be provided with all possible options for making these payments. Some new options have emerged both in the public and...

By Sue Varon, Esq. and Jennifer Varon

Non-custodial parents pay child support in a variety of ways. Divorced parents should be provided with all possible options for making these payments. Some new options have emerged both in the public and private sectors.

Perhaps the most common way child support is paid is through an income withholding or income deduction order, which is issued to the employer of the payor, and mandates payment of support directly to the recipient. In most states income deduction orders have been mandatory unless (1) there is a written agreement between the parties specifying an alternative arrangement, or (2) there is a court order finding good cause against it and finding that the income deduction order is not in the child???s best interest.

However, income deduction orders can be problematic. If the payor is self-employed, periodically unemployed, or is paid only on commission, income deduction orders may have little effect. Moreover, many payors do not wish to disclose to their employer their private matters. Also, some employers refuse to comply without a court order. Further, recipients of support do not want the payor to know their bank account information, which would be necessary if the payor???s employer is to follow the income deduction order.

Most states have established agencies for the enforcement of child support orders. The problem is these agencies have huge case overloads, suffer intermittent backlog of work, and delay in transferring payment to recipient. Consequently, many custodial parents have to resort to private suits for enforcement through contempt, garnishment, and use of private child support enforcement companies. Problematically, many private child support enforcement companies charge astronomical fees for their services, deducting a large percentage (as high as 34%) from the child support collected, and in addition, charge annual fees (some as much as $500).

In reality, most divorce cases settle privately and, divorce lawyers draft settlement agreements providing for the required ???alternative arrangement??? for child support payment. The settlement agreements include the amount of monthly support due, the manner it shall be paid, how often, and until when. A paragraph should also be included in the settlement agreement that provides if payments fall behind more than 30 days, garnishment for support is allowed.

The most common manner of private payment is still paper check. Of course, the worst delivery method is through the child, at the conclusion of the payor???s visitation time. When mailed, payment by check sets up the classic problem of ???the check is in the mail??? and real or false accusations of late receipt.

Both payors and recipients of support complain that they hardly use paper checks anymore. Payors do not want to deal with mailing support checks when they pay most bills online. Recipients do not want to deal with waiting to get the check in the mail, driving to the bank, and waiting in line, to deposit the check. Further, if the recipient is out of town when the check arrives, the deposit will be delayed even further.

Most people do not want to use the government agencies to transfer the support from payor to payee. The parties have been involved in the court system during the divorce process. After the conclusion of the case they want to handle things privately, outside of government involvement. The solution: payment of child support online by credit card through a private company, rather than the government. Using a rewards credit card to pay support could allow the payor to earn cash back rewards or frequent flyer points. Better yet, setting up payments on a recurring basis would be convenient to the payor. The benefit to the recipient would be receiving the full amount of support conveniently directly deposited into their account whether they are home or not on the date support is scheduled to arrive. Bringing the payment of child support into the 21st century would prevent a lot of post-divorce conflict that too often happens.

SupportCertain is the brainchild of Sue Varon, a Georgia family law attorney and her daughter, Jennifer, an accountant with a Master???s Degree. The company was established to provide divorced parties with ???the peaceful way to pay???, minimizing interaction between the parties, while providing them with a way to make and receive support directly and on time. For further information, visit www.supportcertain.comor contact SupportCertain at jennifer@supportcertain.comor at 404 551-4849.

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